13 Tex. 544 | Tex. | 1855
This was a proceeding by a scire facias, to revive a judgment obtained by Sawyer as administrator of Reynolds v. Henry Austin and Edmund Andrews, in Brazoria county. The petitioner does not ask to revive the judgment against the representatives of Andrews. The petitioner prayed to revive the judgment by service of scire facias upon Henry Austin, then a citizen of the county of Galveston, who died after the commencement of these proceedings, and his executors were made parties. A demurrer to the petition was sustained on the exception that Andrews’ representatives ought to have been made parties.
The plaintiff had leave to amend, and he then made the representatives of Andrews parties. The defendants demurred, stating various grounds of exception. The exceptions taken by the representatives of Andrews were sustained, and those by Austin’s representatives were overruled, and a verdict and judgment against them for the amount of the judgment originally rendered, less by the amount perpetually enjoined, from which the executors appealed.
The main ground relied on to reverse the judgment is, that the revival should have been entered as the original judgment was rendered, jointly against the representatives of both Austin and Andrews, and not against one of them only. That where a judgment has been awarded against several defendants, they must all be joined in the scire facias to revive the judgment, should it have become dormant by the omission to issue execution in due time, seems to have been held to be a sound rule of law in the English Courts for a long time back.
The case of Panton v. Hall was decided the first year of
If the doctrine of the cases cited be correct, the judgment of revivor in the case before us cannot stand, and no judgment could be rendered against the appellants, after the representatives of Andrews had been dismissed from the suit. We do not say whether they were properly dismissed from the suit or not, because that question is not before us, but we only say that judgment on the scire facias could not be rendered against the appellants without its being at the same time rendered against the representatives of Andrews. If the appellee, who was plaintiff in the Court below, lost all remedy against the estate of Andrews, by delay and negligence in the prosecution of his claim, and the record shows this negligence to have been very great, the consequence is that he has lost the remedy by scire facias to revive his judgment, but he has •not lost all remedy. Our statute authorizes a plaintiff in a dormant judgment to resort to one of two remedies, to revive by scire facias, or to bring an action of debt on his judgment. If he had lost the first, he ought to have pursued the second, and then he could have sued the testator of the appellants without suing the representatives of Andrews, because a new judgment would have been sought in the action of debt, and not the revival or renewal of the old one.
It appears from the record, that an execution was sued out
There would then be no use in sending the case back, as it could not be so amended as to have a joint revival of the judgment. In fact the Court erred in permitting the scire facias to be amended to make the representatives of the co-defendant a party. The scire facias ought to have been dismissed, when the defendants’, the present appellants, exceptions were sustained, and the plaintiff could either have procured another scire facias or brought an action of debt, as he thought most expedient. The judgment is reversed and dismissed.
Reversed and dismissed.